Mohd Saleem v. Zaheer Ahmad

6. In respect of the bonafide need of the respondent, the impugned judgment holds as under: “Bonafide need of the petitioner and/or his family members regarding the tenanted premises:

11. In this regard it was argued on behalf of the respondent that the words “bonafide need” have not been mentioned in the petition. It is pertinent to observe that mere mention of the words “bonafide need”, in the petition is not sufficient. These are not magical words. The court has to draw the conclusion upon the basis of the pleadings and arguments of the parties. The court has to decide whether need of the petitioner is bonafide or not. As such, the failure to mention the words “bonafide need” in the petition do not hamper the case of the petitioner.

12. Whether the need of the petitioner regarding the tenanted shop is bonafide or not has to be decided upon the basis of the material produced before the court and the arguments addressed by the parties. In his affidavit the respondent stated that the petitioner is doing the work of hair cutting/hair saloon in the shop adjacent to the tenanted shop. In his reply to leave to defend the petitioner stated that his youngest brother, in fact, is doing the work of hair saloon and the petitioner has no concern with that hair saloon. The petitioner has filed the photographs to show that he is selling ready-made garments on footpath/pavement/patri. The respondent has not in any way challenged these photographs. As per the averments of the petitioner, at present he is running his business of selling ready-made garments at footpath/pavement/patri. He wants to shift his business to the tenanted shop. It is always desirable for any person to shift his business to a shop rather than working on the footpath/pavement/patri. It was argued on behalf of the respondent that the nature of proposed business which the petitioner wants to carry out has not been specified. In view of the above, it can be seen that the petitioner has disclosed what business he wants to carry out in the tenanted shop. Further, it is settled law that the petitioner is not required to disclose the details of the proposed business which he wants to carry out in the tenanted-shop. 12.[1] In view of the above, it is clear that need of the petitioner regarding tenanted shop to run his business is bonafide.”

7. With regard to the availability of suitable alternative accommodation with the respondent, the impugned judgment holds as under: “Availability of the reasonably suitable alternative accommodation to the petitioner:

13. The burden to prove the availability of alternative accommodation is upon the respondent. In this regard the respondent has stated that the wife of the petitioner is owning property no. 1/175, (Old No. C-44/12), Gali No. 12, Chauhan Bnager, Delhi-53. Property no. B-86, New Seelampur Market, comprising the tenanted shop is built upto 2nd floor. Sh. Laique Ahmed, brother of the petitioner is also owning four properties in different localities of Delhi. Sh. Shariq Ahmad son of the petitioner is running an ayurvedic and cosmetic shop at property no. A- 152, A-Block, New Seelampur, Delhi-53. 13.[1] In his counter affidavit the respondent has stated that property bearing no. 1/175, (Old No. C-44/12), Gali No. 12, Chauhan Banger, Delhi-53 is occupied by tenants. The property no. B-86, New Seelampur Market, is used as a resident by the petitioner and his brothers alongwith their family members. The property situated at Gali no. 12, Chauhan Bangur is residential property. One shop in that property is in possession of Dr. Shajid Ali. It is denied that any vacant space is lying in property no. B-86, New Seelampur Market, Delhi. The son of the petitioner is running the cosmetic shop at property no. A/152, A-Block, New Seelampur, Delhi-53, however, the same is tenanted shop. It is settled law that in case the respondent alleges that the petitioner has reasonably suitable accommodation, the burden to establish the same lies upon the respondent. Respondent cannot make mere verbal assertions. The respondent is required to produce some credible material to support his assertions. Similar view is taken by the Hon‟ble High Court in Shafiquddin vs. Mohd. Ibrahim, 193 (2012) DLT 788. In the present case the respondent has failed to show that the petitioner has any other reasonably suitable accommodation. It may be argued that the other portions of the property of petitioner are occupied by other tenants. In this regard it is pertinent to mention that the tenant cannot dictate terms to the landlord. The landlord is free to decide which tenant is to be evicted. 13.[2] The burden was upon the respondent to show that the petitioner has reasonably suitable alternative accommodation. Apart from mere averments the respondent has not produced any material to show that any reasonably suitable alternative accommodation is available to the petitioner. The petitioner has specifically replied with regard to all the alternative accommodation allegedly available to him. 13.[3] In view of the above, this court is of the opinion that no reasonably suitable alternative accommodation is available to the petitioner.”

8. In the above circumstances, the ARC held that the petitioner/tenant has failed to raise any triable issue and accordingly, dismissed the application filed by the petitioner seeking leave to defend.

9. It is in the aforesaid background, that the petitioner has filed the present petition assailing the impugned judgment dated 14.05.2015.

10. It has been contended on behalf of the petitioner that the impugned judgment does not correctly appreciate the contention of the petitioner herein with regard to the alternative premises available with the respondent/landlord. Apart from the aspect of availability of alternative accommodation, it is further contended that the impugned judgment fails to take into account that the respondent/landlord has sufficient space on the ground floor of the property in question. It is further contended that the respondent is already carrying on the business of hair-cutting in the shop adjacent to the tenanted shop. The petitioner also strongly refutes the contention of the respondent that the respondent is carrying on his business of readymade garments from patri/pavement/footpath. It is further contended that the photographs relied upon by the respondent to show his current business cannot be relied upon and in any event, the eviction petition does not disclose the nature and description of the business proposed to be carried out by the respondent from the tenanted shop. It is further contended that the aspect of payment of the pagri amount to the respondent’s father itself gives rise to a triable issue.

11. Having considered the contentions raised and the averments made in the present petition, no merit is found therein.

12. As noticed hereinabove, the impugned judgment carefully examined the plea of the petitioner/tenant regarding availability of suitable alternative premises with the respondent/landlord; it is rightly noticed in the impugned judgment that the assertions of the petitioner regarding availability of suitable alternative accommodation with the respondent/landlord are bald averments.

13. With regard to the property bearing no.1/175 (Old No. C-44/12), Gali No.12, Chauhan Bangar, Delhi-110053, it has been clearly stated in the reply to the leave to defend application filed by the respondent/landlord before the ARC that the said property is occupied by different tenants and the same is not in possession of the respondent or any of his brothers. Further, it has been stated that the said property is far away from the residential house of the respondent/landlord and, therefore, not reasonably suitable to the respondent.

14. The law is well settled that the tenant cannot dictate terms to the landlord as to the landlord’s choice of the accommodation or as to how the landlord should adjust himself in the some other premises. In this regard, reference is made to the judgment of the Supreme Court in Anil Bajaj v. Vinod Ahuja, (2014) 15 SCC 610, wherein it has been held as under: “...what the tenant contends is that the landlord has several other shop houses from which he is carrying on different business and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business.” 14.[1] Likewise, in Sarla Ahuja v. United India Insurance Co. Ltd AIR 1999 SC 100, it has been held as under: “…it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” 14.[2] In Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353, it has been held as under: “the landlord is the best judge of his requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a standard of their own.” 14.[3] In Adarsh Electricals v. Dinesh Dayal, (2010) 173 DLT 518, it has been “…The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. It is to be observed that it would be incorrect to suggest that the question of accommodation, actually in possession of the landlord, being „reasonably suitable‟ is to be judged solely in the context of physical sufficiency of the accommodation and that the Court may hold that accommodation is insufficient having regard to various circumstances, such as, the social status of the family or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale and that the viability of the other accommodation will have also to be considered from the stand-point of a reasonable landlord. It is further to be observed that the law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant and for deciding whether or not the alternative accommodation available to the landlord is suitable or not, the social customs, conventions and habits, usage and practices of the society cannot be completely ruled out and termed as irrelevant. The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord.” 14.[4] In Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal (2005) 8 SCC 252, it has been held as under: “It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.”

15. The plea of the petitioner regarding the first floor of the property bearing no.B-86, New Seelampur Market, Delhi being vacant, is again a bald plea. In any event, the respondent/landlord filed a petition asserting bonafide requirement of the tenanted shop on the ground floor for the purpose of carrying on his own business. It has been reiterated in number of cases that for the purpose of opening a shop or carrying out a business, premises on the ground floor are more suitable. In this regard, reference is made to judgment of the Supreme Court in Uday Shankar Upadhyay v. Naveen Maheshwari, (2010) 1 SCC 503, wherein it has been held as under: “once it is not disputed that the landlord is in bona fide need of the premises, it is not for the courts to say that he should shift to the first floor or any higher floor. It is well known that shops and businesses are usually (though not invariably) conducted on the ground floor, because the customers can reach there easily. The court cannot dictate to the landlord which floor he should use for his business; that is for the landlord himself to decide.” 15.[1] Likewise, in Dhannalal v. Kalawatibai, (2002) 6 SCC 16 it has been held as under: “ a shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do.” 15.[2] In ViranWali vs. Kuldeep Rai Kochhar 174 (2010) DLT 328 it has been “any business which is being run from the ground floor of the premises, will obviously attract more customers than the business being run from the basement. It is the settled law, that a tenant cannot dictate the landlord as to how and in what manner the landlord should use his own property.”

16. Similarly, with regard to the properties allegedly owned by the brother of the respondent, the respondent would have no vested right to accommodate himself in any property owned by his brother. Even the assertion regarding the availability of properties with the brother of the respondent is a bald plea unsubstantiated by any cogent material. It has been held by a coordinate bench of this court in Shashi Bala Gupta and Ors. vs. Manish Gupta in RC. REV. 208/2022, as under: “…It is also necessary to note that where the landlord is seeking release of premises which are exclusively owned by him, in such circumstances he cannot be forced explore the possibility of carrying on his business from premises which may be owned by some other family member. In any case, such a defence, if set up by a tenant cannot be countenanced at all.”

17. In the affidavit, filed on behalf of the respondent, in response to the affidavit enclosed with the leave to defend application filed on behalf the petitioner, the respondent has dealt with each and every assertion/allegation of the petitioner regarding the availability of suitable alternative accommodation with the respondent and has stated as under:

18. As such, the respondent clearly dispelled the allegations regarding availability of suitable alternative accommodation, with reference to relevant documents. It is settled law that leave to defend under Section 25B of the DRC Act cannot be granted on mere assertions made by the tenant that various properties are available with the landlord. The allegations/averments in this regard need to be supported with some material to show that such properties were in fact available and suitable to the landlord. Reference in this regard may be had to a decision of this Court in Rajender Kumar Sharma v. Smt. Leela Wati& Ors., 155 (2008) DLT 383, wherein it was held as under: "....Only those averments in the affidavit are to be considered by the rent Controller which have same substance in it and are supported by some material. Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect alternate accommodation are not to be considered sufficient for grant of leave to defend. If this is allowed the whole purpose of Section 25-B shall stand defeated and any tenant can file a false affidavit and drag a case for years together in evidence defeating the very purpose of the statute. The Rent Controller is thus not precluded from considering the material placed before it by the landlord in response to leave to defend to show that the tenant's assertions and averments were totally false."

19. It is in the light of the aforesaid and the fact that the assertions of the petitioner are not based on any cogent material, the impugned judgment has rightly rejected the plea regarding the availability of suitable alternative accommodation with the respondent.

20. The contention of the petitioner, that rear portion on the ground floor of the property in question is lying vacant, and that the respondent is carrying out business of hair cutting from the shop adjacent to tenanted shop is again a bald averment. In the eviction petition it stated that it is the younger brother of the respondent who is carrying on the business from the shop adjacent to the tenanted shop. It is rightly noticed in the impugned judgment that in the reply filed by the respondent to the leave to defend application, it is again clearly stated that it is the younger brother of the respondent who is living on the rear portion of the ground floor of the property in question, and carrying on business of hair cutting and the respondent has no concern with the said business. There is no material on record to controvert the said averment. Even otherwise the Supreme Court in Anil Bajaj (supra) has held that “the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business.”

21. As regards the contention of the petitioner, that the photographs relied upon by the respondent, showing that the respondent is carrying on the business of readymade garments from patri/pavement/footpath, should not be relied upon, there is nothing on record to suggest that the said photographs were ever rejected by the petitioner before the ARC. Even assuming that the photographs are to be disregarded, the same does not in any manner detract from the bonafide requirement of the respondent/landlord. It is not as if the plea regarding bonafide requirement would succeed only if the respondent/landlord is able to show that he is carrying on his business from patri/pavement/footpath. The law is also well settled that it is not incumbent on the respondent/landlord to disclose the exact nature of the business, proposed to be carried out by the landlord, in the eviction petition. In this regard, reference is made to the judgment of Puran Chand Aggarwal v. Lekh Raj 210 (2014) DLT 131, wherein the legal position was reiterated as under:

”

22. As regards the contention regarding payment of pagri amount to the father of the respondent, at the time of letting out of the tenanted shop, again the legal position is well settled that the same cannot give rise to any triable issue. In this regard reference is made to the judgment in the case of Satish Jain v. Taro Devi, 2014 SCC OnLine Del 2453, wherein it has been held as under: “…Section 13 of the Act provides that if a landlord has illegally received any monies in the form of premium, then within one year of making the payment, the tenant can seek recovery of the same and not thereafter. Admittedly, in the present case, period of one year stands expired long back because the tenancy commenced in July, 1993. In any case, even for the sake of argument we presume that the pagri/premium was paid, nowhere does the law provide that after payment of such an amount the tenant cannot be evicted from the suit premises if there is found a bonafide need for the tenanted premises.” 22.[1] In Mohd Salim v.Mohd Nabi, 2022/DHC/005535, it has been held as under: “…the said plea of payment of 'hefty sum' is shorn of any details and is a textbook illustration of a moonshine defence. Such a plea cannot give rise to a triable issue.” 22.[2] In S. Ravinder Singh v. S. Piara Singh, 2014 SCC OnLine Del 294, it has been held as under: “…pagri does not vest any additional right on the tenants to resist eviction.” 22.[3] In Urmil v. Gaurav, RC.REV. 33/2019 (DHC) it has been held as under: “...the contention qua receipt of the pagri by the erstwhile owner is not relevant in [Section 14(1)(e) of the DRC Act] proceedings.”

23. In these proceedings, an additional affidavit has been filed on behalf of the petitioner, wherein the petitioner relies upon on certain photographs to contend that the respondent is running a men’s saloon shop at Shop No.1, Gali No.14, Near Noorani Masjid, Chauhan Banger, Delhi-110053. It is further contended that the respondent is also running a travel agency under the name of Huda Travels and is dealing in Umra, Zyarat, Hajj, Passport, Gulf etc. It is further submitted that the photographs, filed along with the said affidavit, also belies the stand taken by the respondent that he is carrying out his business from the patri/pavement/footpath. The additional affidavit also refers to a transcript of an alleged conversation which took place between one Lalit and the respondent, wherein the respondent is stated to have made admission regarding running of a travel agency business and ownership of the several properties.

24. The Supreme Court in the case of Kedar Nath vs. Dhanraj Devi 2004 SCC 76 has laid down that the rights of the parties should be determined on the basis of the date of institution of the suit or proceedings and the suit/action shall be tried at all stages on the cause of action as existed on the commencement of the suit/action; however, events happening after institution of the suit/proceedings can also be considered in the following circumstances:

(i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or

(ii) it is necessary to take notice of subsequent events in order to shorten litigation; or

(iii) it is necessary to do so in order to do complete justice between the parties.

25. A perusal of the additional affidavit sought to be filed by the petitioner in these proceedings reveals that the purpose of the same is to place on record fresh material which was not on record before the ARC. No “subsequent events” as such, have been brought out. Ex-facie therefore, the said additional affidavit is liable to be rejected.

26. Even otherwise, a bare perusal of the said affidavit, as also the reply thereto filed by the respondent, reveals that the same does not advance the case of the petitioner. As regards the contention in para-2 of the said affidavit, that the respondent is running a men’s saloon shop at Shop No.1, Gali No.14, Near Noorani Masjid, Chauhan Banger, Delhi-110053, the same is a bald averment uncorroborated by any cogent material. The photographs on the basis of which such an assertion is made cannot lead to any inference that the said property is owned by the respondent. Even otherwise, in the reply filed to the leave to defend application, it has been brought out that Chauhan Banger, Delhi is at significant distance from the residential premises of the respondent and therefore, not suitable for the respondent to carry on his business. Further, in the reply filed on behalf of the respondent to the additional affidavit, it has been stated that the aforesaid men’s salon shop referred in the additional affidavit is in fact run by Mohd. Imran, son of Late Sh. Rafiq, as proprietor, and that the respondent was running the same only for a period of four months, on a contract basis.

27. The contention in the additional affidavit, to the effect that the respondent is running a travel agency in the name of Huda Travels from some other premises, again does not detract from the bonafide requirement of the respondent in respect of the tenanted shop. Moreover, even the additional affidavit does not contend that the premises where the respondent is allegedly running his travel agency, is owned by the respondent. The additional affidavit even does not disclose the address of the premises in question from where the alleged travel agency is being run. Moreover, as brought out in the respondent’s reply to the additional affidavit, the business being carried out by the travel agency is a seasonable business for a period of one month after the festival of Eid-ul-fitr and that therefore, the said business is not regular business. It is averred by the respondent that the respondent had to take recourse to the said business to earn some livelihood as income from the business of readymade garments being carried out from the patri/pavement/footpath was very meager.

28. The alleged transcript of the conversation between one Lalit and the respondent, referred to in the additional affidavit, is again completely irrelevant. It is notable that although the additional affidavit of the petitioner refers to conversation having taken place between one Lalit and the respondent, the transcript refers to conversation between one Jahir Ahmed and Saleem Ahmed. Even otherwise, the said transcript/conversation does not nullify/extinguish the bonafide requirement of the respondent in respect of the tenanted shop to establish his permanent business. As noticed hereinabove, the law is well settled that it is not for the tenant to dictate to the landlord as to how he can adjust himself.

29. In the circumstances, no case is made out to interfere with the impugned judgment. The law is well settled as reiterated by the Supreme Court in the recent judgment of Abidul Islam vs. Inder Sen Dua (2022) 6 SCC 30, that the scope of interference in the revisional proceedings is very restricted and except in cases where there is an error apparent on the face of the record, this court would not proceed to disturb the findings rendered in the final judgment of the rent controller while exercising revisional jurisdiction. In this regard reference is made to the following observations in the said judgment:

30. In the circumstances, no merit is found in the instant petition and the same, along with pending applications, is accordingly dismissed, however, with no orders as to costs.

SACHIN DATTA, J. MARCH 10, 2023 hg/cl